Overholding Tenants
You’ve given your tenant a 14 day eviction notice or the tenants fixed term lease is coming to an end and you suddenly discover your tenant has no intent of moving out, now what? You’re being held hostage at this point by what is known as overholding tenants.
The Residential Tenancy Act refers to tenants who stay past the end of a lease as overholding and their is a process to get them out. The same with tenants who have stayed past the eviction date.
Unfortunately the process involves either going to court or via the RTDRS and this can add another week or two to their stay.
Now, before we go into what to do, here are some tips on how to avoid it happening in the future and what you can do to help tenants move along.
Tenant References
I’m not advocating lying about tenants, their habits or their quality, but as their current landlord, you hold some significant leverage over them when it comes to their chances of acquiring their next rental property and you need to use that leverage. This is especially handy when it comes to tenants coming to an end of a fixed term lease that does not have an option to default into a month to month lease.
You need to make them aware that they will require your reference as their current landlord, especially when the rental market is tighter. Without a good landlord reference, their odds of finding a good safe place to live goes down drastically. Or they have to hope they find a landlord who doesn’t bother to check references, which hopefully would be none of the readers of this article.
Again, this requires a certain amount of discretion. If the tenants are the worst possible tenants anyone could ever have, you cannot tell another landlord they would make ideal tenants. If they are tenants who just need a nudge every now and then about certain things, like paying rent on time or cleaning the yard, that is a different matter.
This is also why I recommend when you screen tenants you don’t put as much faith in their current landlord (who may have an alternate agenda as in “I have to do whatever I can to get rid of these people!”) as you do in prior landlords. (If you’re unsure about what you need to do to properly screen tenants, be sure to check out the 30 minute video I created on How To Screen Tenants)
Being Pro-Active With Tenants – Fixed Term Leases
When you have a tenant who is coming to the end of the term and you do not intend on renewing, you need to make it clear that you are in control. First and foremost make sure you provide the tenant at least a month’s notice in writing that you will not be renewing.
By having it in writing and giving them plenty of notice it will provide them with very little in the way of excuses. Under the Residential Tenancy Act it does not state a notice period or that the landlord even has to provide written notice that they will not be renewing, but not doing so has backfired on other landlords.
When it comes to protecting the tenant versus the landlord and there is no definitive evidence, the judges and the hearing officers often default to protecting the tenants. Verbally telling the tenant you are not renewing could result in a he said/she said routine, by having written notice in advance there is no grey area.
Being Pro-Active With Tenants – Eviction Notices
If you’ve given your tenant a 14 day or 24 hour eviction notice, you need to make sure they understand the process. If you have properly prepared and understand the process your odds of successfully evicting a tenant are very good. If not, you have less than a 50% chance of getting a timely eviction.
Now for serious offenses I advocate skipping an eviction notice and filing directly with the RTDRS or the courts immediately, you do not need to give tenant an eviction notice first. (For more on that, check out this post, Use The RTDRS to Evict Problem Tenants).
If you are going the eviction notice route, make sure you understand it and have the proper eviction notices. Using an improper eviction notice can void the eviction, delay the tenant being evicted or worse yet get your case thrown out. (For proper eviction notices purchase my Eviction Forms Package or my Eviction Guide for Landlords which includes them as well.
Inform the tenant about their options. If the eviction is strictly for non-payment or late payment, as long as they pay the outstanding amount in full prior to the eviction date on the notice they can stay. This should actually be stated on your eviction notice or it may be invalid.
If the eviction is for other breaches of the lease or continuous late payments where paying you in full will not fix the breaches, you need to make sure the tenant is aware of this. Let them know that if they are not gone by the eviction date you will be using the legal process to not only have them removed, but if they owe money to you for damages or outstanding rent that you will pursue a judgment against them that will impair their credit as well. You need to make sure you are in control, without being threatening.
By following these basics you can impress upon your tenant that you are serious and that you will do what it takes to achieve the outcome you are looking for whether it be collecting outstanding rent or having the tenant leave. By skipping steps or not getting everything in writing, you can set yourself up for a much more difficult experience.
When Tenants Just Won’t Leave
So, fast forwarding, the tenant hasn’t left, the eviction date or the end of term has passed, what is your next step. The next option is going directly to the RTDRS or the court house and filing and application to evict the tenants.
Hopefully in the days leading up to the eviction date you have been documenting everything that took place and have adequately prepared for the worst. If you are positive that the tenant won’t be leaving by the eviction date or the end of the term it is possible to file for a hearing in advance, but the hearing won’t be until after the date they were to be out has passed and they may want to push this back to give the tenants as much time as possible.
If you are filing via the courthouse it will cost you $100 and via the RTDRS it will be a $75 charge, either of which you can apply towards any outstanding monies the tenants owe or as costs associated to the eviction.
Once you have the hearing the judge or hearing officer will come up with a judgment and provide a court ordered date that the tenant has to be out. This date is determined by multiple factors, some of which are out of your control and others directly in your control.
If there are children involved, it could add as much as a month to provide adequate time for the family to find new accommodations. If you didn’t follow proper procedures or didn’t follow the correct processes, it could nullify the entire eviction and leave your fixed term lease as a month to month lease or your eviction for a breach of the lease in limbo and have you starting over.
If you diligently documented everything, notified the tenant and updated them with the options, repercussions and can show you tried to work with them, your eviction can be much quicker. While the system does try to prevent tenants from being thrown out on the street unjustly, it also is aware of tenants who simply don’t get it and will assist landlords in this manner.
Having tenants overhold or stay past the end of their lease or eviction is not the end of the world. It can be a pain, it can delay you moving forward, but if you follow some of the landlord advice on this page it can go a long way to helping you get the results you needed and regaining control of your property.
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Hey, my landlord just gave me an eviction notice which stated that my wife and kids had to move out of the basement bec the lease contract is void bec we smoked in the house, which we didn’t. Furthermore she has been coming in our house without notice and how we know is that me and my wife were out and cameback and the eviction notice was sitting on table. Could I get some advice on it bec its chrismas time and we spent almost all of our savings in gifts. She will not give the deposit back as notice said we owed her rent for this month plus late fees of 9 days equal to grand. Please advice and my apology for a lenthy post.
Hi Rashid,
To evict you for smoking, first she will have to prove you were smoking. The onus is on the landlord to do this. Second, without providing you proper notice of entering your premises, the landlord is in breach of the Residential Tenancy Act (RTA). Third, she has to return your security deposit within ten days after you move out and/or provide a statement breaking out andy hold backs and why.
So some quick questions, what type of eviction notice did she give you? It’s probably incorrect and can be easily voided, you can also object to it, but I would need to know the eviction date and the length of time. This inclues the eviction date, what date you received it etc.
Finally, have you paid December’s rent? If you haven’t, she has every right to evict you, whether the smoking is just a distraction, I cannot tell yet.
Hope this helps and let me know the answers to my questions and I will reply tomorrow some time.
Regards,
Bill
Hello,
We have a tenant that has been given a court ordered eviction for the end of December , he was also given a court order to pay Decembers rent on the first at noon at the property which he ignored , our lawyer said to now issue a 14 day notice for eviction for him to leave because he has ignored the court order to pay the rent . Today was the day he was to be out December 16 , he did not leave . What would happen if we just went and put all of his stuff in the garage and changed the locks ? He has already disregarded the judges order , Would he then have to take us to court ?
Hi Val,
You need to check the court order you received for the eviction. Typically they will provide the final eviction date and if there is an additional order to pay it often accelerates this eviction date. Is this where the December 16th date comes from?
Do not give him a 14 day eviction notice, you already have a court order and that would just muddle things up and worst case mess up your court order. Not sure why a lawyer would even suggest that unless he had no idea how this works.
If the 16th is the date he has to leave to make this enforceable, you need to hire a bailiff at this point to make everything valid. The bailiff will come down, either post the notice the tenant is not allowed on the property or provide them with 30-60 minutes to pack up and get out. At this point you can change the locks and establish a date and time for the tenant to meet you and grab the last of their goods.
If you change the locks without doing this step, or pack up their items before, you are infringing on their rights and could jeopardize the entire order.
hHope this helps,
Bill
The order was for the 31 of december it was also in the order for him to pay Decembers rent which he did not due that is why the lawyer suggested we issue the 14 day , because the tenant is in contempt of court ?
Hi Val,
The 14 day eviction is the step you take first, if that fails, or the tenant ignores it your next step is going to court. There is a potential that if you file a 14 day eviction notice it will reset the clock for this individual. The order itself has specific wording as to what you can do if the tenant does not pay on a court mandated payment arrangement.
If it was a stay/Cinderella order, also known as a conditional order there are prescribed steps to have them removed. If it was an unconditional order (which this one wasn’t as there was a condition to make a payment), they simply have to be out at a certain point.
Go back to the order and read through it, it likely says if they haven’t paid, you can immediately proceed with the bailiff and get them out right away.
Bill
I would totally recommend Bills Book.
If you are a first time landlord or have had a few renters before this book is a must have. It teaches you the first steps to the eviction process right down to the details of getting rid of a real problem renter.
He also covers things you should include in your rental contract and move in inspection. There is nothing he has missed or left out!! Period!!
Wayne K
I own a house that my ex wife and son live in. I have been advised by my lawyer that this is not a good situation. I had asked her over a year ago to find a place to live but that has not happened. We need to sell the house and get everything finished with the divorce. I just sent her a letter informing her that she has to move out by June 15th, 2013. What are my options if she refuses?
Hi Gary,
This fits beyond an eviction scope. Since she’s your ex-wife you run into issues like Dower rights if you both lived there. This basically says she is a 50% owner and you can’t evict an owner.
You’ll have to discuss your legal rights with your lawyer and see if you can force a sale potentially or establish some type of by-out to get this dealt with.
Regards,
Bill
I will be moving to a house where the current tenant has been issued a 14 day eviction notice, with the departure date being April 7th. We were to sign a lease with him effective April 15th. Today they put a note in the landlord’s mailbox stating that they will not vacate until April 28th. My understanding is that he is going to talk to them and assess the situation but that given their past, he is not fully confident they will even leave on the 28th. My concern is this: I have given my notice to my landlord who has already found a new tenant for May 1st. Obviously this will leave me in a difficult situation should the people not vacate by the 28th. As I understand, moving forward with court ordered evictions could take a week or two to take effect. What would you suggest I do in this situation? I have a storage/back up plan should I not be able to move in prior to May 1st, however I really don’t want to have to take that risk. I am viewing the inside of the property this weekend (either by the tenants choice or by the landlord issuing a 24 hour entry notice). Would it be advisable that I ask the landlord to move forward with legal action as a precaution if the April 28th date is not met? Is any verbal agreement binding should he make arrangements with them to move by the 28th and then change his mind and want them out sooner?
Any advise you could offer on this situation would be GREATLY appreciated.
Hi Ashley,
This is a classic example of how tenants not leaving when they say they will can affect not just the landlord, but other tenants. In this situation, I would recommend to the new landlord that he commences with either an RTDRS hearing or a court hearing as soon as possible.
At this point he cannot have the actual hearing until the eviction date has past, but he can file it tomorrow or Friday with the hearing coming next week.
At the hearing he can explain everything, ask for an eviction date of the 28th or even earlier if he expects a lot of cleanup (he could try for the 15th, but the hearing officer or courts may say that isn’t enough time, even if they have been given previous warning, although it never hurts to ask!).
He should probably included evidence of the new signed please an even include a statement from you, if possible, regarding you giving notice and possibly being out of a place to live.
The important part of all this is the landlord has to do this sooner rather than later. If he believes them and waits until the 28th to see if they actually go, he still has to go through the courts or RTDRS after that date and that would push your moving in back until possibly the 15th or even past the 30th of April if the courts give them a full month to move on.
I don’t have all the facts about why they are being evicted and this may cause other issues, but from the basic facts, even if they absolutely guarantee they will leave on the 28th, he should proceed to a hearing of some kind, after all, they probably agreed to pay the rent at soem time and abide by the lease and if they are getting evicted, apparently that didn’t work out so well.
Bill
I am a tenant and I have leaved in the apartment for 4 years half and always pay my rent on time, I usually give 6 to 12 months post dated cheques. during these four years I have seen this landlord evicting tenants when they complain of anything. the landlord is a she, she tell them that she need for family use. On my case she gave me illegal rent increase which is less than 90 days, so I replied her that her notice is faulty, along with other complain regarding the apartment, that she should serve me a proper notice. shortly after she serve me with eviction notice instead of rent increase notice. the reason being she want to use it for her family. I object to the termination because I believed it was retaliation. now she taking me to court for immediate eviction. she did not include my Objection letter. I have her on voice record telling she want me moved because I complain too much about the apartment. what is my faith since the court date is the last day of my termination notice. what is the minimum time will the court give if I lose. I will like to move out but I want the landlord to know she can not just abuse tenants because she can. You guys should know that there are some bad landlord out there.
Hi David,
Thanks for your comments. It’s true there are some bad landlords out there and they actually make it harder for all the good landlords.
It sounds like you have some good evidence, especially the voice recording. Make sure you document everything that happened and bring all the notices, objection letters and anything else you have to court with you.
If the judge determines that she is trying to evict you illegally and is misrepresenting her case it will make it very hard for you to get evicted in the future without extremely obvious breaches of the lease.
If you could also contact one of the other tenants who was evicted and bring them in as a witness that may also be beneficial. Finally make sure to include the list of deficiencies you have for the property, if the judge is upset enough with the landlord’s behaviour he may order her to do the necessary fixes as well!
Hope this helps,
Bill